First National Bank of Elizabeth City v. Brockett

93 S.E. 370, 174 N.C. 41, 1917 N.C. LEXIS 12

Opinion

Allen, J.

The principle requiring the loss of a paper to be established before evidence of its contents is admitted has no application to this case, because the defendant admits in his answer the execution of the check, the amount, on what bank drawn, and to whom payable, and the nonproduction of the paper was only material after verdict in determining the action of the court with reference to indemnity. There was, however, evidence of loss of the check.

0. 0. Hayes, a member of tbe firm of 0. Syer & Co., testified tbat be received tbe check from tbe defendant and sent it to tbe plaintiff. E. V. Griffin, wbo was employed in tbe plaintiff bank, testified tbat tbe check-was sent out to tbe Bank of Commerce at High Point in a letter be wrote; and IT. A. Willis, cashier of tbe Bank of Commerce,, testified, in substance, tbat tbe Bank of Commerce did not receive tbe check. This, if true, raises a fair presumption tbat tbe check was lost in tbe mail.

It is true, contradictory statements were made by some of these witnesses on cross-examination, but, as said in Shell v. Roseman, 155 N. C., 94, and approved in Christman v. Hilliard, 167 N. C., 5, this affected tbe credibility of tbe witness only, and did not justify withdrawing the-evidence from tbe jury.

Tbe judgment of nonsuit must be set aside.

Reversed.